The Cadillac Fairview Corporation Limited v. Toronto (City), 2023 CanLII 1725

Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: January 12, 2023

CASE NO(S).: OLT-22-002175

PROCEEDING COMMENCED UNDER subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: The Cadillac Fairview Corporation Limited

Subject: Request to amend the Official Plan - Failure of the City of Toronto to adopt the requested amendment

Purpose: To permit nine tall buildings ranging in heights from 16 to 35 storeys and two, six-storey mid-rise buildings

Property Address: 25 The West Mall

Municipality: City of Toronto

Approval Authority File No.: 19 187348 WET 03 OZ

OLT Case No.: OLT-22-002175

OLT Lead Case No.: OLT-22-002175

OLT Case Name: The Cadillac Fairview Corporation Limited v. Toronto (City)

Heard: December 12, 2022, by Video Hearing

APPEARANCES:

Parties

Counsel

Cadillac Fairview Corporation Limited

John A. R. Dawson Matthew Schuman Cynthia MacDougall (In Absentia) Brendan Smith (In Absentia)

City of Toronto

Laura Bisset Daniel Elmadany

SmartCentres REIT

Rodney Gill David Bronskill (In Absentia) Matthew Lakatos-Hayward (In Absentia)

Fima Development

Barry Horosko

Fairfax Financial Holdings Limited

Roslyn Houser Rodney Gill

MEMORANDUM OF ORAL DECISION DELIVERED BY BITA M. RAJAEE AND C. HARDY ON DECEMBER 12, 2022, AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This is the first Case Management Conference (“First CMC”) before the Ontario Land Tribunal, with respect to an appeal under subsections 22(7) of the Planning Act by the Cadillac Fairview Corporation Limited (“Appellant/Applicant”) from the failure of the City of Toronto (“City”) to make a decision within the statutory timeframes on an application for an Official Plan Amendment (“Site-Specific OPA Appeal”) with respect to lands located at 25 The West Mall in the City of Toronto (“Subject Property”).

2The purpose of the Site-Specific OPA Appeal is to permit redevelopment of the surface parking lots around the periphery of the CF Sherway Gardens mall with a mix of uses including retail, office, hotel, and residential uses.

3On October 30, 2019, the City adopted Official Plan Amendment No. 469 (“OPA 469”), the Sherway Area Secondary Plan by By-law No. 1535-2019 with respect to lands bounded by Highway 427, the Queen Elizabeth Way, the Canadian Pacific Rail line and the Etobicoke Creek ravine for the purpose of bringing forward the Sherway Area Secondary Plan, which contains a series of policies that reflect the outcomes of a comprehensive planning study for the lands in the Sherway Area of Etobicoke. Four existing Site Area Specific Policies (“SASPs”) applicable to the area are proposed to be removed under the plan. The Tribunal has received a number of appeals by entities and property owners that are affected by the plan, filed pursuant to s. 17(24) of the Planning Act against the City’s adoption of OPA 469 through By-law No. 1535-2019 (“Sherway Gardens Appeal”). The Appellant/Applicant in the Site-Specific OPA Appeal is also an Appellant in the Sherway Gardens Appeal.

4The Appellant/Applicant submitted that the Site Specific OPA Appeal and the Sherway Gardens Appeal should be consolidated under Rule 16 of the Tribunal’s Rules of Practice and Procedure (“Rules”). This is discussed in further detail below.

5The Affidavit of Service of Notice of the First CMC, sworn by Juliana Tyndorf on November 30, 2022, is marked as Exhibit 1.

6On December 9, 2022, the Appellant/Applicant advised the Tribunal that there was an issue with the service of Notice of the CMC. Counsel for the Appellant/Applicant became aware that the Notice Package may not have been received by some interested entities. Approximately 15 addresses were identified, and the Notice of the CMC was resent to those addresses. The Supplementary Affidavit of Service of Notice of CMC, sworn by Juliana Tyndorf on December 9, 2022, is marked as Exhibit 2.

7Due to the very short timing between the service of the Supplementary Notice to the 15 addresses indicated and the First CMC, the Tribunal determined that an additional CMC would be scheduled, as detailed below. The Tribunal directed that Notice would be provided in accordance with the Tribunal’s required timelines to those who had not received the original Notice in a timely manner. The Case Coordinator will provide the Appellant/Applicant directions with respect to service of the Notice for the Second CMC.

8The Tribunal agreed with the City that any decisions made at this First CMC are without prejudice to those who did not receive timely notice.

PARTY/PARTICIPANT STATUS REQUESTS

9The Tribunal was tasked with adjudicating a number of Party Status Requests as follows:

a. SmartCentres REIT (“SmartCentres”), who is the authorized agent for the owners of the lands known municipally as 179 North Queen Street and 98 Index Road (“SmartCentres Lands”). The owners of these lands are Calloway REIT (Etobicoke) Inc. and Calloway REIT (Etobicoke-Index) Inc. SmartCentres is an appellant in the Sherway Gardens Appeal. SmartCentres indicated that it is not necessarily opposed to the proposed Site-Specific OPA for the Subject Property, but sought Party Status to ensure that any discussions or modifications agreed upon in the course of the Appellant/Applicant’s case do not prejudice or limit SmartCentres’ appeal of the Secondary Plan or the potential redevelopment of SmartCentres Land.

b. Fima Development (“Fima”), who is the owner of two sites at 200 Sherway Drive and a 20-acre site on the north side of the Queensway (“Fima Lands”). Fima Development is an appellant in the Sherway Gardens Appeal. As such, though Fima is not opposing the Site-Specific OPA, it maintains interest in the appeal and desires that it be a Party in this appeal as a result.

c. 2637092 Ontario Inc., known as Fairfax Financial Holdings Limited (“Fairfax”), who is the owner of the property which lies immediately to the south of the Appellant/Applicant’s Subject Property (“Fairfax Lands”). Fairfax is an appellant in the Sherway Gardens Appeal. Fairfax does not oppose the Site-Specific OPA by the Appellant/Applicant but has an interest in the appeal because of the proximity of the Fairfax Lands to the Subject Property and in light of the ongoing Sherway Gardens Appeal.

10After hearing the submissions of each potential Party, and on consent of the statutory Parties, the Tribunal concluded that SmartCentres, Fima, and Fairfax have an interest in the matter and will assist it in adjudicating the issues effectively. The Tribunal granted Party Status to each of SmartCentres, Fima and Fairfax.

11At this First CMC, the Tribunal also received a Party Status Request from Home Depot of Canada Inc. (“Home Depot”), who is a Party in the Sherway Gardens Appeal. The Appellant/Applicant requested that Home Depot submit a formal request in writing to the Tribunal to seek Party Status, and that this request be considered at a later CMC to allow the Parties to adequately review and assess the Party Status request and respond accordingly. The Tribunal ordered that Home Depot submit a Party Status Request prior to the next CMC, and deferred the determination of Home Depot’s status in this matter to the next CMC date.

12In response to the Notice, the Tribunal received no other requests for status (Party or Participant) at this time.

DRAFT PROCEDURAL ORDER AND ISSUES LIST

13The Parties did not produce a draft Procedural Order (“PO”) and Issues List (“IL”). In the Sherway Gardens Appeal, a motion has been scheduled to determine the scope of the Appellant/Applicant’s issues. Moreover, the Appellant/Applicant submitted that the Site-Specific OPA Appeal before the Tribunal, OLT file number OLT-22-002175, should be consolidated with the Sherway Gardens Appeal, OLT file number OLT-22-001933, under Rule 16 of the Rules. The City opposed the request, and as such, a motion is required to deal with the question of whether the two appeals should be consolidated.

14Due to these various upcoming events, as well as the potential addition of new Parties, the Appellant/Applicant submitted that it was premature to submit a PO and IL at this stage.

15The Tribunal agreed. It was determined that a Third CMC would be scheduled, as discussed below, wherein a draft PO and IL may be presented for the Tribunal’s review and approval.

MEDIATION AND SETTLEMENT

16The Tribunal raised the issue of opportunities for settlement discussions, including the use of Tribunal-assisted mediation. The Parties advised that this was premature, but they remained open to the possibility of a settlement at some point in the future and are aware of the availability of mediation.

17The Parties are directed to advise the Tribunal in writing should they reach a settlement with respect to some or all of the issues prior to the hearing and, should they wish to pursue Tribunal-assisted mediation, they may make a written request to the Tribunal through the Case Coordinator for those services.

SECOND CMC

18Due to issues with service of the Notice of the First CMC, described in detail at paragraphs [6] to [7] of this Decision, the Tribunal scheduled a Second CMC to take place on Tuesday, January 31, 2023 at 10 a.m. Notice of the Second CMC is to be provided to those who did not receive Notice of the First CMC within the requisite timelines of the Tribunal.

19On Tuesday, January 31, 2023, Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

Tuesday, January 31, 2023 at 10 a.m. (One day CMC)

GoTo Meeting: https://meet.goto.com/357283957

Audio-only Telephone line: 1-888- 455-1389 OR +1 (647) 497-9391 Access code: 357-283-957

20Parties and Participants are asked to access and set up the application well in advance of the event to avoid unnecessary delay. The desktop application can be downloaded at GoToMeeting or a web application is available:

https://app.gotomeeting.com/home.html

21Persons who experience technical difficulties accessing the GoToMeeting application or who only wish to listen to the event can connect to the event by calling into an audio-only telephone line: [1-888-455-1389 OR +1 (647) 497-9391]. The access code is [357-283-957].

22Individuals are directed to connect to the event on the assigned date at the correct time. It is the responsibility of the persons participating in the hearing by video to ensure that they are properly connected to the event at the correct time. Questions prior to the hearing event may be directed to the Tribunal’s Case Coordinator having carriage of this case.

MOTION DATE

23The Appellant/Applicant submitted that the Site-Specific OPA Appeal and the Sherway Gardens Appeal are intimately related and should be consolidated in accordance with Rule 16 of the Rules. The City opposed this request. As such, a motion has been scheduled, to commence on February 22, 2023, to determine whether the two appeals should be consolidated. This motion date has also been reserved to deal with the Appellant/Applicant’s scope of issues in the Sherway Gardens Appeal. As such, three (3) days are required for the hearing of these motions.

24The motion to address the issue of consolidations has been scheduled to take place virtually, starting on February 22, 2023, and three (3) days have been set aside.

25On Wednesday, February 22, 2023, at 10 a.m., Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

Wednesday, February 22, 2023 at 10 a.m. (three day motion)

GoTo Meeting: https://meet.goto.com/558205565 Audio-only telephone line: 1-888-299-1889 OR +1 (647) 497-9373 Audio-only access code: 558-205-565

26The same instructions apply to the hearing as indicated at paragraphs [19] through [22] of this Decision.

THIRD CMC

27The Parties submitted that, subsequent to the consolidation motion, a Third CMC would be required to address procedural matters arising from the motion, as well as to prepare this matter for a hearing. The Tribunal agreed and scheduled a Third CMC, to take place virtually on Tuesday, March 28, 2023, wherein issues relating to an upcoming hearing will be addressed. No further notice of this Third CMC will be provided, save for a reminder at the Second CMC to all Parties, including any new additional Parties, that a Third CMC has been scheduled.

28On Tuesday, March 28, 2023, at 10 a.m., Parties and Participants are asked to log into the video hearing at least 15 minutes before the start of the event to test their video and audio connections:

Tuesday, March 28, 2023 at 10 a.m. (One day CMC) GoTo Meeting: https://meet.goto.com/558205565 Audio-only telephone line: 1-888-299-1889 OR +1 (647) 497-9373 Access code: 558-205-565

29The same instructions apply to the hearing as indicated at paragraphs [19] through [22] of this Decision.

OTHER MATTERS

30The Tribunal inquired as to whether there were any other matters to be addressed, which might assist in the fair, just and expeditious resolution of this matter. The Parties indicated there were none.

ORDER

31The Tribunal Orders as follows:

a. The following are now a Party in this proceeding:

i. SmartCentres REIT;

ii. Fima Development; and,

iii. Fairfax Financial Holdings Limited.

b. A Second CMC is scheduled to take place virtually on Tuesday, January 31, 2023, at 10 a.m., and one (1) day has been set aside. The Appellant/Applicant is to provide notice of this CMC in accordance with the directions provided by the Tribunal.

c. A motion hearing is scheduled to take place virtually on Wednesday, February 22, 2023, at 10 a.m., and three (3) days have been set aside. There will be no further notice.

d. A Third CMC is scheduled to take place virtually on Tuesday, March 28, 2023, at 10 a.m., and one (1) day has been set aside. There will be no further notice.

32The Members are not seized, but may be contacted through the Case Coordinator should procedural issues arise.

“Bita M. Rajaee”

BITA M. RAJAEE

MEMBER

“C. Hardy”

C. HARDY

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.